Assault & Battery Falsely Accussed of Felony Domestic Battery

[ZacsDad]

I filed for divorce in August 07 and there has been one provisional hearing which occurred on October 29, 2007. During the hearing, I raised concerns over the safety and welfare of our son (2 yoa) and based on what I said, the judge appointed a Guardian Alitum. The judge ordered that we would continue staying in the same house and this has had its up and downs.

After the hearing my lawyer told me to start a journal and to watch out because my wife would probably try anything since I raised the issues that I had. I started the journal and it is very detailed (since I'm very detailed-oriented).

We live in Indiana, but I'm originally from PA. Another order of the judge was that we would split the Thanksgiving holiday and a week after the hearing I told my wife that I planned on taking our son to PA the weekend after Thanksgiving. The weeks prior to Thanksgiving, she alluded to the fact that I was taking him to PA, but the Tuesday prior related that I wasn't taking him. On Thanksgiving Day, she had him from 11:00 AM - 8:30 PM so I don't see where the split; however, that isn't what this post is about...

I again tried to take him home two weeks after Thanksgiving as I was going to go hunting in PA, but she related again that I wasn't taking him. The excuse was that he had to practice for an upcoming play at his daycare...come on, he is 2. She also related that since I was taking him to PA after Christmas that I didn't need to take him on this trip. I didn't press the issue and went to PA again without my son.

As Christmas was approaching I was waiting for her to once again prevent me from taking my son to PA and as is becoming the history, this occurred on 22 December...4 days before we were supposed to leave. She even emailed an "official" disapproval with some lame excuses on why she didn't want me taking him. I ignored the email and she sent it again on Christmas Day and I again ignored it.

On 26 December we woke up a little before 10:00 AM. I lied to her about using two pieces of photo paper and she began yelling and cursing at me. In addition to our son, my wife has two daughters (11 & 10 yoa). Upon seeing where this situation was going, I started packing my son's clothes so that we could get out of there. She kept entering his room where I was packing and yelling at me...telling me that I better have my cell phone with me because I would be getting a call to come back from PA. I ignored her and continued packing.

I know this is a long story already so I will get to the point. My wife self-inflicted herself and claimed that I had battered her. We were on the landing in our foyer and she yelled down to her daughters to call 911. I asked her why she was calling 911 and she then yelled, "Let go of my arm!!!"...definitely loud enough for her daughters to hear. At no time did I even touch her and never have. The daughters only "heard" her yell this, but weren't in view of us so I know they didn't see anything and if they were, there was nothing to see anyway.

I went downstairs to hear my youngest step-daughter say in to the phone, "My step-father just grabbed my mother's arm". As my wife was walking towards me, I told her that I hadn't touched her and she related that, "It doesn't matter, you're going to jail this time."

She then took the children out in to the garage and pulled our van out in to the driveway. I immediately called my mother as what she was doing would not only affect my custody of my son, but also my career as I am a 19 year veteran of the Air Force and possess a Top Secret DoD clearance in both my military and civilian careers. She had threatened to not only get custody of our son, but also threatened my careers in August '07.

She repeatedly entered and exited the house to get items (computer, binder, jacket, etc...) as I was talking to my mother and at one point said, "Look what you did to me" and I had to look as I had no idea. Seeing where she was pointing, she had scratched herself (starting at the left jawline and down the side of her neck). I said, "I didn't do that, you did that to yourself!" and she replied, "Who are they going to believe?", laughed and then continued up the stairs. My mother also heard her say this through the phone.

After providing some history to the deputy and explaining what had happened, I was arrested for Felony Domestic Battery and spent the longest 29 hours of my life in the county jail. I haven't seen nor heard from my son since the incident and definitely feel that I'm "guilty until proven innocent".

There is a protection order against me which includes my son and his daycare; however, my wife told the daycare that I was authorized to see my son and even pick him though the order shows it as off-limits. I contacted the daycare to make payment for my son's slot and this is why I know this. The Director of the daycare related that she was never directly contacted by my wife, but was told this by our son's primary caregivers. I faxed the order to the director so she would have a copy. Both her and I believe that my wife was trying to set me up to get arrested again.

Of course everyone is believing my wife's story (well at least her family), but it is totally a vindictive move to make me look like a bad person and I'm in fear for not only my son, but my careers.

I do have a lawyer for the criminal case and am in between lawyers for the divorce and as of now it appears that I may be able to see my son on Wednesdays from 6:00 PM - 8:00 PM and then every other weekend from Friday at 6:00PM - Sunday at 6:00 PM though this has not occurred yet.

Additionally, my wife is supposed to start 3 weeks of training out of town and I have asked that I be able to have my son while she is out of town. At this point, I am not sure if this is going to happen or not?

I have learned that my wife has claimed some additional injuries (other than the sratch she showed me)...something about her wrist and her shoulder (though I don't know which since I didn't touch her).

I asked a second deputy that had arrived at the scene to scrape my fingernails and he related, "What good would that do?" I replied, it would show that I didn't scratch my wife (as this was the only injury I was aware of at the time).

Finally...my question. Are there experts out there that could determine that the scratches on my wife's face/neck were not caused by me?

I have no doubt that my wife suffers from manic depression and possibly bipolar disorder though it hasn't been diagnosed (because she lives in denial). There is a family history (her dad is manic depressive and her oldest daughter is currently taking Prozac for anxiety/depression)

 

[ZacsDad]

Additionally, my wife is actually the only one who committed battery as she was chasing me through the house and grabbed my arm as I was trying to go up the stairs...a tiny (half inch to an inch) scratch is the only injury I sustained as I broke free of her and continued up the stairs to the landing. Upon asking the deputy why she wasn't also arrested, I was told that someone needed to take of the children and I related that the daughters' father lived within 5 miles and that her mother could watch our son. I was told that I was also a "victim", but that the prosecutor would probably not file charges against her. I have been involved in law enforcement for 19 years and am an upstanding citizen, was a good husband and am a great dad, but am now seeing the other side of law enforcement and at this point, haven't totally given up hope, but can also say that when they say "justice is blind" I'm gaining a whole new perspective of what that means. She had tried to have me arrested back in July 07 for another bogus domestic charge and when the deputy arrived...he unwittingly taught her what she needed to do next time since he told her that there didn't appear to be any altercation and that she didn't have any marks on her. She may be crazy, but not stupid.

 

[Scooterdog]

Did you document the times she wouldn't let you take your son? If she is disrespectful of visitation, custody can change hands.

Custody can be changed if visitation is denied. ENTWISTLE V. ENTWISTLE, 402 NYS 2d 213

 

[ZacsDad]

Yes. I have been journaling from 26 Oct 07 through Present and these instances are contained within the journals...along with a lot of other events that occurred. Additionally, I am in the process of completing a timeline of our marriage (5 years) and am documenting all of the significant events that occurred throughout the marriage. I have a uncanny way of remembering things (don't know why), but am hopeful that all that I'm doing and all that I've done will show the pattern. At the time these events occurred, we were living under the same roof. She does treat our son like a piece of property that she owns and it doesn't appear he is taken in to account in any of the decisions she makes. Thanks for the reply...

 

[Scooterdog]

It would be helpfull to have a witness to some of this. The journal is helpful, and you can testify to it, but a witness or two would be even better.

You could petition the court for temp. full custody, demand a mental evaluation of the ex, provide a good parenting plain, legal brief if needed, aff. It is possible you could win.

 

[ZacsDad]

Are you referring to an eye witness or just individuals that knew I was supposed to take our son to PA? I do have the latter, but most of the time my wife and I were by ourselves when these situations came up or at best, her daughters were there. Once I retain my new divorce attorney, I will discuss petitioning the court. If there anything else, please let me know. I am facing both the divorce/custody issue and the criminal charge due to her false report and could use any help that I can get. Thank you for what you have provided up to this point.

 

[ZacsDad]

Regarding the criminal case (and possibly the divorce/custody case?), will the fact (as I have been informed by the daycare) that my wife lied to the daycare about my ability to see my son and/or pick him up from the daycare have any weight? She related that I was authorized to do this, but asked to be called if I did; however, the Protection Order clearly states that my son is one of the protected individuals and that the daycare is one of the places I am not authorized at. The Protection Order was served at my residence (the one I am not allowed to be at). I think she thinks that I didn't have a copy due to this and was trying to set me up to be arrested again, but when I plead "not guilty" at the Magistrate's, I asked the judge about getting a copy as I had only been verbally informed of it when I was being released from the county jail. He directed me to the clerk's office and I was able to get a copy which stipulated the aforementioned. I also found out there was a hearing on the following Monday (this was a Friday) and I was supposed to be out of town on business starting Sunday so I was lucky that I asked for a copy of the Protection Order or I wouldn't have known anything. I asked the clerk how I was to know about the hearing and I was told that it would have been delivered to the same address as the Protection Order...which again, I am not authorized to be at. I was stunned and was expecting to be served at work since my wife knows where I work, but that never occurred. Of course this seems screwy to me, but everything that has happened up to this point is pretty screwy. Luckily, I was able to get the Protection Order Hearing continued.

 

[Scooterdog]

Are you referring to an eye witness or just individuals that knew I was supposed to take our son to PA? I do have the latter, but most of the time my wife and I were by ourselves when these situations came up or at best, her daughters were there. Once I retain my new divorce attorney, I will discuss petitioning the court. If there anything else, please let me know. I am facing both the divorce/custody issue and the criminal charge due to her false report and could use any help that I can get. Thank you for what you have provided up to this point.

You may want to find a fathers rights adv. and hire them to help you with the paper work. I have never seen a man benefit from an attorny when it comes to family law. Just my two cents worth. (I have full custody of my son)

 

[Scooterdog]

Regarding the criminal case (and possibly the divorce/custody case?), will the fact (as I have been informed by the daycare) that my wife lied to the daycare about my ability to see my son and/or pick him up from the daycare have any weight? She related that I was authorized to do this, but asked to be called if I did; however, the Protection Order clearly states that my son is one of the protected individuals and that the daycare is one of the places I am not authorized at. The Protection Order was served at my residence (the one I am not allowed to be at). I think she thinks that I didn't have a copy due to this and was trying to set me up to be arrested again, but when I plead "not guilty" at the Magistrate's, I asked the judge about getting a copy as I had only been verbally informed of it when I was being released from the county jail. He directed me to the clerk's office and I was able to get a copy which stipulated the aforementioned. I also found out there was a hearing on the following Monday (this was a Friday) and I was supposed to be out of town on business starting Sunday so I was lucky that I asked for a copy of the Protection Order or I wouldn't have known anything. I asked the clerk how I was to know about the hearing and I was told that it would have been delivered to the same address as the Protection Order...which again, I am not authorized to be at. I was stunned and was expecting to be served at work since my wife knows where I work, but that never occurred. Of course this seems screwy to me, but everything that has happened up to this point is pretty screwy. Luckily, I was able to get the Protection Order Hearing continued.

Wow.

I was wondering about that order of protection and her telling the school or whatever something different than what the order was. It would be the icing on the cake if she could get you caught voilatiing that order.

That order is or can only be temp., then you have your hearing, which you seem to have gotten a continuence for. The original order was done ex parte, meaning the good judge and your ex screwed you. They have temp. terminated your rights, this they can not do:

Visitation (parenting time) is a constitutionally protected right which can be protected in federal court, even if father is in prison. MABRA V. SCHMIDT, 356 F.Supp. 620

Ex Parte conferences, hearings or Orders denying parental rights or personal liberties are unconstitutional, cannot be enforced, can be set aside in federal court, and can be the basis of suits for money damages. RANKIN V. HOWARD, 633 F.2d 844 (1980); GEISINGER V. VOSE, 352 F.Supp. 104 (1972)

Arguments that Joint Custody constitutes a "fundamental right." BECK V. BECK, 86 N.J. 480, see also 23 Ariz. Law Review 785

Below is an example of how to combat these types of false allegations. As you can see, this happens more often than one wants to believe.

 

[Scooterdog]

Your case is Criminal now, but in the future, she will be throwing it in your face, even if you are found not guilty. You may want to save this to your computer for future use. Note: Don't use Washington's laws, just cross reference the law to your state, it's pretty simple:

"Respondent [Your Name Here....], for judicial economy and relief of the parties makes the following response and combines said response with the motion and declaration for temporary orders, attached herewith. Respondent responds as follows:

Firstly I am requesting that a court reporter be provided to make a verbatim record of the proceedings. Further, I request that this matter not be tried upon declarations and oral testimony of the parties only. The Respondent hereby requests that he be able to call witnesses, with cross?examination, be conducted. I am requesting that this hearing must contain all the elements of due process, which, above all, requires sufficient evidence, which, by its preponderance, will support restriction of a member of the family to his or her rights under the law. An appropriate evidentiary proceeding with competent witnesses, should be called by the court. This process, is required.
BACKGROUND:
The Mother moved out of the Family home on Friday February 5, 2002 and has moved into a family shelter. She will not communicate with the me, except for one telephone call where she threatened to file a divorce. I have not been in contact with the children since she moved out. The Mother has attempted to make contact with me through her sister this past week but I refused to speak with her the moment I heard that there may be a restraining order in effect. The Mother is concealing my children from me for no good reason.

Petitioner filed a request for an [Place local statute here] domestic violence protection order on February 11, 2002. Said request for order was filed and signed by a cour commissioner after the Mother moved into a Women's Shelter; whereabouts unknown.


The Mother has made a number of very serious allegations in paragraph 6.1 of her Petition; all of which are either a complete falsehood or a gross distortion of the truth. There has been no domestic violence, whatsoever, on my part. The Mother alleges that I was court ordered to do anger management, community service and parenting classes, in this matter, some time ago. This is true; but, this resulting action was predicated upon the lies and gross distortions of the Mother, at that time. This has no bearing at this point except to indicate that the Mother is, again, using the court process as a tool to gain control of the children and the situation.

In the two incidents that the Mother is describing the children were crying at night while both of us were in bed. The Mother and her son Jared were screaming back and forth regarding going to sleep. I asked the Mother if she wanted me to intervene. The Mother said yes. I simply went into the children's room to tell Jared to stop this and to get to sleep. The Mother came up behind me and physically pulled me away from the child. (I was leaned over the child with my hands and the sides of the bed. At no time did I touch the child) As the Mother was pulling me away I turned and guided her with my hands away from me. At this point Jared got out of bed and called 911. There was absolutely no reason for the police to be called. The Mother states that I through her about the room. This is a complete falsehood!

The incident that the Mother describes as happening in the car was an equally distressing distortion of the truth.

We have an extreme discipline problem with my step son. The fact is, the Mother cannot control him and relies on me to handle him. When I discipline him the Mother always intervenes and the incident usually results in harsh treatment by the Mother toward me and her son.

I have not committed any acts of domestic violence against the Petitioner, but, I, and members of my family, have been subjected to a pattern of harassment by the Mother and her son; he is the real problem here, not I.

Recently, the Mother's sister, stated that the Mother is sorry that she "has to" process this restraining order and that she did not mean for this to happen. It seems obvious, especially since there is a considerable length of time since the date of the alleged incidents, that the Mother is being coached into doing things that are not appropriate. I believe that the people at the Shelter is coaching the Mother .

I have no way of serving the Mother as she is in an unknown shelter. The court, pursuant the temporary restraining order, has kept the Mother's address confidential. This is completely unnecessary except to add further fuel to the Mothers' case. I believe that the Mother is being coached to keep her address confidential also, and has nothing, whatever, to do with the Mother being afraid, as she mentions in her declaration.

The Mother is definitely disturbed and is using the process to attempt to gain complete control of the children and the situation.


I believe that the Petitioner/Mother has not presented even a prima facie case for domestic violence. To the best of my knowledge, for Assault to occur three elements must occur, 1) Intent 2) Apprehension of offensive or harmful contact and 3) Causation. None of these have occurred. Further, for Battery to occur three elements must occur 1) Intent 2) Offensive or Harmful Contact and 3) Causation. Again, non of these have occurred. All that we have to go on is the declaration of the Mother. Moreover, the Mother is describing incidents that happened a considerable time ago; therefore, the Mother's only possible argument of "fear", causing her to leave is NOT VALID. If the Mother was afraid she should have left when the incidents occurred.

The Mother is, in fact, violent herself, as demonstrated by the time that she yanked my daughters arm and dislocated her elbow.

I have been deprived of significant rights to be with my family and other liberty interests (loss of good name and permanent restraints on my activities) even though a full hearing must be granted. In this case, temporary deprivations were made before final judgment. In light of said deprivation and loss of liberty I believe that this case should be immediately dismissed and the Mother be sternly warned not to bring such actions again. Further, I asked the court for $250.00 in terms for having to defend a frivolous action. I further ask the court to consider the attached motion for temporary orders pursuant to the Dissolution of Marriage, currently pending.

EVIDENCE RELIED UPON:
Ehrhart v. Ehrhart, 776 S.W.2d 450 (Mo. App. 1989) [Use local Case Law Here....] held a protection order proceeding. "No witnesses were sworn nor was any documentary evidence offered." 776 S.W.2d at 451. The appellate court reversed and remanded for a due process evidentiary hearing, holding:

When serious liberty or property rights are a stake, a contested evidentiary hearing must be conducted prior to any deprivation. Goldberg v. Kelly, 397 U.S. 254 (1970) (welfare benefits); Flory v. Dep't of Motor Vehicles, (revocation of driver's license); Rogoski v. Hammond, 9 Wn. App. 500, 513 P.2d 285 (1973) (pre?judgment seizure).

Record of Proceedings: The Superior Court is a court of record by both constitution and statute. Wash. Const. art. IV, sec. 11; RCW 2.08.030. RCW 2.32.200 provides that its proceedings shall be recorded upon demand.

A complete report of proceedings is essential to appellate review of any case. When such a report has been requested but is refused by the court or otherwise not provided, the case must be reversed and remanded for a new trial. State v. Larson, 62 Wn.2d 64, 381 P.2d 120 (1963).

A report of proceedings is even more important for revision of a commissioner's ruling, which is made de novo and on the record before the commissioner. This report is also required to protect due process rights to have a decision based upon the evidence presented.

Rules of Evidence: Under ER 101, the Rules of Evidence "govern proceedings in the courts of the state of Washington to the extent and with the exceptions stated in rule 1101." Domestic violence protection order hearings are not among the exceptions stated in [Use local rule here]. Therefore, the Rules of Evidence apply to domestic violence proceedings just as they do to any other court proceeding.

The definition of domestic violence in [Use Local Statute Here....] is used, including "physical harm, bodily injury assault, or the infliction of fear of imminent physical harm, bodily injury or assault" and "sexual assault".

This is nearly identical to the common?law definition of assault (taken directly from Washington case law):


Any willful attempt or threat to inflict injury upon the person of another, when coupled with an apparent present ability so to do, and any intentional display of force such as would give the victim reason to fear or expect immediate bodily harm, constitutes an assault. An assault may be committed without actually touching, or striking, or doing bodily harm, to the person of another. State v. Murphy, 7. Wash. App. 505, 500 P.2d 1276, 1281.
Black's Law Dictionary 105 (5th ed. 1979).
Petitioner has failed to state a claim upon which a domestic violence protection order can be granted. Petitioner's request should be dismissed with prejudice pursuant to CR 12(b)(6).

Petitioner's Terms: RCW 26.50.060 authorizes an award of terms to the prevailing party in a domestic violence protection order action.

 

[ZacsDad]

You may want to find a fathers rights adv. and hire them to help you with the paper work. I have never seen a man benefit from an attorny when it comes to family law. Just my two cents worth. (I have full custody of my son)

What paperwork would a Father's Rights advocate help me with? I already have one that I got a while ago, but they didn't seem too helpful...seemed they/he was resigned that my wife would get custody and that I would just have to deal with it, though that was just my perception.

 

[ZacsDad]

Expert Witnesses

In my original thread...which is quite long I know, I asked the question regarding possible expert witnesses that could determine that a scratch (from a photo) was or was not caused by me. I may watch too much Law & Order, etc..., but I would think that there is someone out there that would be able to determine this...from the width of the scratches versus the width of my fingers perhaps? I realize that my request may sound desperate, and if it does, it is because I am desperate. From what I've researched so far and due to how I've been treated up to this point, the burden to prove my innocence seems more important than the state proving me guilty. Is an expet witness a possibility or am I just dreaming?

 

[Scooterdog]

What paperwork would a Father's Rights advocate help me with? I already have one that I got a while ago, but they didn't seem too helpful...seemed they/he was resigned that my wife would get custody and that I would just have to deal with it, though that was just my perception.

Check your PM's.

They can do as little or as much paper work as needed. Also, when your wife is paying $200/hour for her shyster, you would only be paying around $1200/year. Twelve-HUNDRED, not thousand. This is one way to win.

 

[ZacsDad]

Check your PM's.

They can do as little or as much paper work as needed. Also, when your wife is paying $200/hour for her shyster, you would only be paying around $1200/year. Twelve-HUNDRED, not thousand. This is one way to win.

I'm sorry...what does PM mean?

 

[Scooterdog]

In my original thread...which is quite long I know, I asked the question regarding possible expert witnesses that could determine that a scratch (from a photo) was or was not caused by me. I may watch too much Law & Order, etc..., but I would think that there is someone out there that would be able to determine this...from the width of the scratches versus the width of my fingers perhaps? I realize that my request may sound desperate, and if it does, it is because I am desperate. From what I've researched so far and due to how I've been treated up to this point, the burden to prove my innocence seems more important than the state proving me guilty. Is an expet witness a possibility or am I just dreaming?

I believe your rights to due process were thrown out when they refused to get a damn skin sample from both of you, especially after it was requested!

I would love to hear the theory on this one. They seem to have collect enough "evidence" to charge you, but failed to continue the MUCH needed investigating (aka: DNA EVIDINCE)that would have shown:

1-you are innocent.

2-your ex is a nut.

3-your ex comitted a crime by making a knowingly false report to police.

4-your ex is guilty of signing a knowingly false statement, there by using the state to prosecute you on a false charge.

5-the police were neglegent by not taking that sample, and thus did not provide ALL of the evidence to a prosecutor to determine if there is actual "good cause" to prosecute you!

Go in or call that hotshot lawyer who's defending you about that. I would love to hear what he has to say. Ask him if you can sue in Federal Court EVERY PERSON INVOVLED. Watch his facial expression. The state is going into court with dirty hands on this one, knowing there was some hard core scientific evidence at the sceen that should have been collected which would have put a stop to this stupidity from the get go.

This is why I get so mad at lawyers. They have you defending yourself against a crime you never comited. How do you defend against such a case?

1-Truth

2-Witness testimony

3-PHYSICAL EVIDINCE! Which the cops let get destroyed so they would have an easy prosecution against you. What a crock of dung.

This is no different than if they showed up at a murder, grabbed the body, and cleaned the freagin crime sceen.

 

[Scooterdog]

I'm sorry...what does PM mean?

Private messages at the top right of the screen. I can't post web sites on here, they call that advertising.

 

[ZacsDad]

I couldn't agree with you more...you just raised my spirits and actually made me crack a smile which I haven't been able to do since this all started...thanks.